Why Arbitrary Merger Enforcement Must End

The Federal Communications Commission (FCC)’s politicization of mergers is demonstrating the truth of two old adages: first, what goes around comes around; second, the more things change, the more they stay the same.

This observation was precipitated by a 1966 episode of Firing Line, in which William F. Buckley, Jr. interviewed Barry Goldwater. Often when reading old books and listening to recordings of old interviews, one is struck with the sense that many of the problems with which states and statesmen contended in prior decades and centuries seem determined once again to crop back up today. The maladies of the body politic that are diagnosed (and the remedies prescribed) often have changed but little with time. People, being ruled by the same “constitution of human nature” from the Paleolithic to the Digital Age, tend to manufacture the same sorts of problems for themselves, no matter the calendar date.

After a few minutes, a strikingly modern issue unexpectedly entered the conversation. Goldwater says:

It’s becoming obvious that large businesses in some areas have to get together. Now, who has the control on this? The President…so that powerful businessmen have to become beholden to the president in order to see that their business is put in a position where they can compete. And this is becoming more and more a problem frankly with the conservative movement, is the fact that businessmen are being intimidated by the president and are moving away from historic positions.

A Democrat, at present, does not occupy the White House, and conservative corporations need not fear arbitrary merger enforcement in pursuit of progressive political ends. But under President Donald Trump, corporations thought hostile to the administration are quaking — particularly those within the jurisdiction of the FCC.

In recent months, the FCC has made clear its intent to deploy its merger authority to effect regulation of a definitively non-economic or non-competitive nature. Corporate diversity, equity, and inclusion (DEI) programming has become a primary object of the FCC’s ire. Many companies pursuing mergers eager to avoid regulatory interference (including T-Mobile, Paramount, and Verizon), have retreated from such practices. Should anyone be left in doubt, FCC chairman Brendan Carr made his position explicit: He stated that his agency would “approve a transaction if we find that doing so serves the public interest … If there’s [sic] businesses out there that are still promoting invidious forms of DEI discrimination, I really don’t see a path forward where the FCC could reach the conclusion that approving the transaction is going to be in the public interest.”

The road from capitulation to regulatory assent seems short and direct. For example, The New York Times reports, “In May, Verizon, then awaiting approval from the F.C.C….informed Mr. Carr that it was voluntarily disbanding its D.E.I. policy in a letter worded similarly to T-Mobile’s. A day later, the agency approved the merger, citing Verizon’s commitment to ending its D.E.I. programs.”

It should be noted that the promotion or advocating of, and adherence to, DEI principles — however objectionable — does not violate federal law so long as companies do not trespass onto ground governed by federal civil rights law. The judiciary has made clear that, absent harassment or other such illegal behavior, the First Amendment protects corporate expressions of progressive views concerning race and race relations. Whatever the Trump administration’s moral judgment of DEI, it has no legitimate interest in squashing the ideology — and is, indeed, constitutionally barred from the attempt.

Besides DEI, the FCC has suspended the sword of Damocles to assist President Trump in his personal quarrels. In 2024, Trump sued CBS for an allegedly illegal edit of an interview with then–presidential hopeful Kamala Harris — a specious lawsuit that would ordinarily have ended in an ignominious defeat for the president.

The rub: CBS’s parent, Paramount, happened to be seeking to acquire Skydance, a deal requiring the FCC’s approval. Forgoing a rendition of the protracted saga that unfolded, Paramount (hoping to get on with its business endeavors), settled in court with Trump for $16 million.

The Buckley–Goldwater exchange illuminates an unavoidable truth: economic power is political power. A government possessed of the power to micromanage the economic lives of Americans is a government whose reach cannot be contained merely to economic matters. Vast and arbitrary economic powers — when entrusted to the discretion of fallible men — are liable to be abused. This rule applies not only to Democrats, but to Republicans, Libertarians, Greens, etc. It applies to humanity. John Adams, writing of the dangers of entrusting too much power to anyone, of any class or faction, put it thus: “They are all of the same clay.”

Buckley and Goldwater knew this. Conservatives widely knew this, too — once. But those today who bemoan the last century of progressive governance in Washington, D.C. would do well to dismantle the machinery of that governance — not to rush to grasp its levers of power in furtherance of their own political advantage. Alas, too many Republicans have succumbed to the temptations of transient political opportunity and, finding themselves in office, have chosen to use the administrative state and other traditional conservative boogeymen for their own ends.